21 Haw. 701 | Haw. | 1913
OPINION OP THE! COURT BY
The tax assessor for the first taxation division brought action and recovered judgment against the plaintiff-in-error upon a declaration containing four counts. The first count was upon
Before the case was reached for. argument in this court the plaintiff-in-error interposed an objection to Mr. Justice Perry sitting as a member of the court, the ground of objection being “that the appointment and commission of said Honorable Antonio Perry, as a Justice of this Honorable Court, expired, and became null and void on or about the 10th day of May, A. D. 1913, and that since said last mentioned date, said Honorable Antonio Perry has not been, and is not now, duly or legally qualified or entitled to sit or officiate as an Associate Justice, or as a member of this Honorable Court.”
Justice Perry was commissioned on the 6th day of May 1909, by President Taft with the advice and consent of the Senate of the United States “for the term of four years commencing with the date hereof, subject to the provisions of law.” Since May 6, 1913, he has in good faith continued to act as one of the members of this court and to perform the duties of the office as he had theretofore done. This has been with the acquiescence of the department of justice, the other members of this court, the bar, and litigants. No new appointment has been made and no other person claims the office.
After argument upon the objection it was dismissed. We held that Justice Perry is at least a de facto judge and that his authority could not be questioned collaterally in the manner attempted in this case. Territory v. Mattoon, ante, p. 672.
The defendant demurred to the complaint upon the ground, among others, of a misjoinder of causes -oí action in that an action based upon a judgment as sought to be set forth in the
In the case of Harrison v. Magoon, 13 Haw. 339, 358, it was held that an action on a judgment is, within the meaning of our statute (Civ. Laws, Sec. 1259; R. L. Sec. 1743), an action ex contractu on the promise, or contract implied by law to pay the amount of the judgment, and that a count upon a judgment may be joined with another upon contract express or implied. The plaintiff-in-error contends that a judgment is in no proper sense a contract or agreement between the parties, and claims that the case cited was wrongly decided. We are not disposed to consider the contention on its merits. The point presented is one of mere practice under the statute which should be regarded as settled, and we adhere to the ruling made in that case. A question of this kind having once been definitely decided, should and generally will be regarded as settled. 11 Cyc. 748; Mosher v. Huwaldt, 86 Neb. 686. In taking this position we are not to be understood as intimating that that ruling was not well founded.
One of the assignments of error raises the question whether the present assessor may maintain an action upon a judgment recovered against a delinquent taxpayer by his predecessor in office. Counsel for the plaintiff-in-error "contends that there is no statutory authority for the proceeding and that as the rights of the assessor in the premises depend wholly upon statute the assessor cannot recover upon the first count. Section 1193 of the Revised Laws provides that “The successor of any assessor shall be "invested with the same powers and be subject to the same duties and liabilities as his predecessor, and shall collect all taxes then unpaid, and shall carry on any proceedings commenced by his predecessor.”
“Proceeding” in its general acceptation means “the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them, of opposing judgments and of executing” judgments. Bouv. Law. Dict.; Erwin v.
Section 1242 of the Revised Laws, as it stood prior to its amendment in 1911, provided that “Each assessor shall at any time add to his assessment or tax list, any person or property theretofore omitted; notice thereof shall be given to the owner,, if known, within ten days after such addition, ” etc. This court has never been called upon to construe that section of the law, and its effect is not involved here.
It is argued that section 1235 authorizes and contemplates
The authority mainly relied on by counsel for the plaintiff-in-error is the case of Central of Georgia Railway v. Wright, 207 U. S. 127. In that ease certain shares of corporate stock owned by the plaintiff-in-error had not been assessed to it upon the understanding which appears to have been entertained by both the state officials and the railway company that they were not taxable; eventually the supreme court of the United States held that such shares were taxable; thereupon the comptroller-general of Georgia, after calling the attention of the president of the railway company to the decision of the supreme court and asking for data with reference to the value of the stock in question, and after receiving certain information in reply, assessed the company upon the stock according to the best information obtainable as to its value. The suit wras to enjoin the collection of the tax so assessed. In its opinion the court pointed out that the statute of Georgia provided that in cases of failure to make return of taxable property the comptroller-general shall make an assessment from the best information he can procure which assessment shall be conclusive upon the taxpayer and an execution may at once be had for the amount of the tax together with the' costs and penalties; also that the supreme court of Georgia had held that when a person fails to make a return in whole or in part he becomes a defaulter, whether he acted fraudulently or through honest mistake and in the utmost good faith, and the opportunity is closed to him so far as adjusting the assessment is concerned. The supreme court held that the procedure did not constitute due process of law. But the facts in that case differed from those in this and the question discussed and decided by the court in that case was a different one from that presented here, as the following excerpts from the opinion will show. The court said, “In view of this statute as thus construed the question made is, whether
In the case in hand the record shows that the defendant made returns of his property for the years 1905, 1906 and 1907. Apparently he made no returns for the years 1893 and 1908 in which years, presumably, the assessor made the assessments fairly and according to the best information within his reach. No claim to the contrary is made. It does not appear, nor is it of consequence, whether the defendant in failing to make returns in those two years was contumacious or merely negligent, but there is no suggestion that in so doing he was “hon
However, the plaintiff-in-error is in a-position to urge that the provisions of section 1235 of the Revised Laws were lacking in due process of law in that the section submitted to the “doom” of the assessor persons who have negligently failed or contumaciously refused to. return their property for taxation after notice so to do as required by other sections of the statute.
In Cooley on Taxation (2nd. ed.) 358, it is said “The right to discriminate in some manner against those who fail to hand in lists has often been judicially recognized. When the discrimination consists merely in submitting the party to the 'doom’ of the assessor, and depriving him of any appeal, it would seem that there could be no valid objection to it.” The Massachusetts system is similar to ours so far as the point involved is concerned and its constitutionality has been upheld not only by the courts of that State but by the supreme court of the United States. There the statute provided that the assessors “shall ascertain as'nearly as possible the particulars of the personal estate, and of the real estate in possession or occupation, as owner or otherwise, of any person who has not brought in such list, and shall estimate its just value, according to their
Judgment affirmed.